New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment

Judgment:

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
			'observations' => null,
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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		(int) 0 => '389366',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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ORDER

Jawad Rahim, J.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
			'observations' => null,
			'overruledby' => null,
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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		(int) 0 => '389366',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
)
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1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
			'observations' => null,
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
)
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2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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4. The relevant facts are:

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'pubs' => 'ILR2009KAR1062',
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		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
)
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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
)
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3. As per final order.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167
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Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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1. Whether joint appeal by the insurer and the insured against the award is maintainable?

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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3. Whether claimant could maintain claim under Section 166 of the M.V. Act?

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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4. Whether determination of compensation under various heads is adequate?

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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	'casename_url' => 'new-india-assurance-co-ltd-vs-riaz',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
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	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
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			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
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			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
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			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
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			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
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			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
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			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
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			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
)
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Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
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			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:

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	'title_for_layout' => 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '389366',
			'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
			'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
			'appellant' => 'New India Assurance Co Ltd. and anr.',
			'authreffered' => '',
			'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
			'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
			'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
			'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
			'court' => 'Karnataka',
			'court_type' => 'HC',
			'decidedon' => '2006-04-05',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
			'judgement' => 'ORDER<p style="text-align: justify;">Jawad Rahim, J.</p><p style="text-align: justify;">1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p style="text-align: justify;">2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p style="text-align: justify;">3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p style="text-align: justify;">4. The relevant facts are:</p><p style="text-align: justify;">Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p style="text-align: justify;">5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p style="text-align: justify;">6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p style="text-align: justify;">7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p style="text-align: justify;">8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p style="text-align: justify;">PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p style="text-align: justify;">It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p style="text-align: justify;">9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p style="text-align: justify;">10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p style="text-align: justify;">ISSUES:</p><p style="text-align: justify;">1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p style="text-align: justify;">2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p style="text-align: justify;">3. What order?.</p><p style="text-align: justify;">IT RECORDED ITS FINDING THUS:</p><p style="text-align: justify;">1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p style="text-align: justify;">2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p style="text-align: justify;">3. As per final order.</p><p style="text-align: justify;">11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p style="text-align: justify;">12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p style="text-align: justify;">13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p style="text-align: justify;">14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p style="text-align: justify;">a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p style="text-align: justify;">b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p style="text-align: justify;">c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p style="text-align: justify;">Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p style="text-align: justify;">15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p style="text-align: justify;">16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p style="text-align: justify;">17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p style="text-align: justify;">QUESTIONS FRAMED:</p><p style="text-align: justify;">1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p style="text-align: justify;">2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p style="text-align: justify;">3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p style="text-align: justify;">4. Whether determination of compensation under various heads is adequate?</p><p style="text-align: justify;">18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p style="text-align: justify;">19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p style="text-align: justify;">PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p style="text-align: justify;">PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p style="text-align: justify;">The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p style="text-align: justify;">PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p style="text-align: justify;">Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p style="text-align: justify;">20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p style="text-align: justify;">21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p style="text-align: justify;">Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p style="text-align: justify;">In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p style="text-align: justify;">To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p style="text-align: justify;">Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p style="text-align: justify;">Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p style="text-align: justify;">Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p style="text-align: justify;">OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
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			'pubs' => 'ILR2009KAR1062',
			'ratiodecidendi' => '',
			'respondent' => 'Riaz and ors.',
			'sub' => 'Motor Vehicles',
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$title_for_layout = 'New India Assurance Co Ltd and anr Vs Riaz and ors - Citation 389366 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '389366',
		'acts' => 'Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923',
		'appealno' => 'M.F.A. Nos. 6622 of 2003 and 6631 of 2004',
		'appellant' => 'New India Assurance Co Ltd. and anr.',
		'authreffered' => '',
		'casename' => 'New India Assurance Co Ltd. and anr. Vs. Riaz and ors.',
		'casenote' => '(A) MOTOR VEHICLES ACT, 1988 - Sub-section 2 of Section 149 - Language employed under - Insurer's entitlement to defend the action - Defences available to insurer under the Statute - Joint appeal filed by the insured and the insurer - HELD, The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170 and 149 of the Act. FURTHER HELD, - It is seen the insured can persue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable.;(B) MOTOR VEHICLES ACT, 1988 - Section 166 - Claim petition - Accident - Accident was the result of mechanical defect of the vehicle - Whether the driver/injured be deprived of the compensation that he would be otherwise entitled to - Whether claimant could maintain claim under Section 166 of the Act? - HELD, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under Workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognized not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimant's right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. ON FACTS, HELD, In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor.;(C) MOTOR VEHICLES ACT, 1988 - Accident claim -Insurance company and limits of its liability - Payment of compensation - HELD, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. It is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. - FURTHER HELD, Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. - ON FACTS, HELD, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the learned Member of the Tribunal in the correct prespective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given go-bye. Thus, the court is satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. - Impugned award is modified. Instead of Rs. 4,15,150/- awarded by the Tribunal, the claimant will now be entitled to Rs. 8,20,000/- as compensation.;MFA 6622/03 is dismissed.;MFA 6631/04 is allowed in part. - MOTOR VEHICLES ACT (59 OF 1988)Section 149 (2): [V. Gopala Gowda & Jawad Rahim, JJ] Insurers entitlement to defend the action  Joint appeal by insured and insurer - Held, The language employed in enacting sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of Section 149 of the Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Sections 170 and 149 of the Act. The insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. Therefore, the joint appeal as filed by the insured and the insurer is not maintainable. 

Section 166: [V. Gopala Gowda & Jawad Rahim, JJ] Claim for compensation  Accident due to mechanical defect in the vehicle  Held, It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under Workmens Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act. The right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmens Compensation Act, but also under benevolent provisions under Section 166 and 167 of the M.V. Act. The right of driver to seek compensation is not restricted only to the Workmens Compensation Act, it has been enlarged to enable such person to seek just compensation (Sections 166 and 168), conferring upon him the right of election engrafted under Section 167 of the Act to choose either of the two Forum. The only defence which the insurer could take is limit of its liability as enumerated under Section 147 of the Act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the Tribunal which crystallizes into enforceable right against both. In the instant case, the claimant/driver has exercised right of election under Section 167 of the Act to seek compensation under Section 166 of the Act resulting in award passed by the Tribunal. Therefore, the insured and the insurer have no escape but to discharge the said award as directed. Undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. The owner is therefore, tortfeasor. 

Section 168: [V. Gopala Gowda & Jawad Rahim, JJ] Insurers limit of liability -  Held, It is well settled that the liability of the Insurance Company for payment of compensation can be statutory or contractual. Is for the Insurance Company to show that the Insurance policy was a statutory policy and not a contractual policy to restrict its liability. That issue was neither raised before the Tribunal nor is raised in this appeal requiring decision. Thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under Section 149 (1) of the Act. Where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmens Compensation Act. On facts, held, The material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. The settled principles governing determination of compensation has been given a go-bye. Compensation of Rs.4,15,150/- awarded by the Tribunal was enhanced to Rs.8,20,000/-.  -  8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. 1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. AIR1998SC2968 ,it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. It is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. 24. Consequently, we hold that in a case like this, where the owner-insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the Act, instead of seeking compensation under the Workmen's Compensation Act. Considering the grounds urged by both sides and having examined the judgment and award impugned, we are satisfied that the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the Learned Member of the Tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. Thus, the Courts satisfied that the amount of compensation awarded to the claimant is inadequate and needs reassessment. [1995]1SCR75 ,the Apex Court while dealing with a similar case of paraplegic held that the damages should be awarded for medical attendance, loss of earning up to the date of trial and in future, other material loss, for mental and physical shock, pain and suffering already suffered or may likely to be suffered in future, loss of amenities of life (which may include variety of matters like inability to walk, run or sit), for loss of expectation of life (that is, the normal longevity of the person concerned being shortened as a result of the injuries), inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, etc. it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned. 38. Applying the ratio of decisions on this point and considering the evidence on record, we are satisfied that the evidence indicates petitioner's incapacity to engage himself in any other avocation, apart from loss of chance of pursuing his earlier avocation. Judicial conscious must be satisfied that the victim has been justly compensated. 39. On the basis of what we have discussed above we are convinced that the claimant is deprived of source of earning, which he had prior to the accident and that there is seemingly no possibility of his physical condition becoming any better than what it is today to enable him to seek any alternate source of income. We are, therefore, satisfied that the claimant is entitled to be compensated towards loss of amenities, deprivation of joys and pleasure in life and other factors.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => 'a) Towards loss of future income                   Rs. 6,40,000/-
b) Towards injury, pain and sufferings             Rs. 1,00,000/-
c) Towards loss of amenities in life               Rs. 50,000/-
d) Towards medical expenses                        Rs. 10,000/-
e) Towards food, nutrition and
   attendant charges                               Rs. 20,000/-
                                                 ------------------
   Total                                           Rs. 8,20,000/-
                                                 ------------------
',
		'counselplain' => 'G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.',
		'counseldef' => 'V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1',
		'court' => 'Karnataka',
		'court_type' => 'HC',
		'decidedon' => '2006-04-05',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'V. Gopala Gowda and ;Jawad Rahim, JJ.',
		'judgement' => 'ORDER<p>Jawad Rahim, J.</p><p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.</p><p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.</p><p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.</p><p>4. The relevant facts are:</p><p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.</p><p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.</p><p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.</p><p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.</p><p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:</p><p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.</p><p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.</p><p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.</p><p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:</p><p>ISSUES:</p><p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?</p><p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?</p><p>3. What order?.</p><p>IT RECORDED ITS FINDING THUS:</p><p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.</p><p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.</p><p>3. As per final order.</p><p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.</p><p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.</p><p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.</p><p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:</p><p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.</p><p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.</p><p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.</p><p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.</p><p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.</p><p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.</p><p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;</p><p>QUESTIONS FRAMED:</p><p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?</p><p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?</p><p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?</p><p>4. Whether determination of compensation under various heads is adequate?</p><p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.</p><p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :</p><p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.</p><p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)</p><p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.</p><p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.</p><p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable</p><p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.</p><p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:</p><p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;</p><p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:</p><p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.</p><p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.</p><p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;</p><p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:</p><p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under ',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => 'ILR2009KAR1062',
		'ratiodecidendi' => '',
		'respondent' => 'Riaz and ors.',
		'sub' => 'Motor Vehicles',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'new-india-assurance-co-ltd-vs-riaz'
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	(int) 0 => '389366',
	(int) 1 => 'new-india-assurance-co-ltd-vs-riaz'
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$url = 'https://sooperkanoon.com/case/amp/389366/new-india-assurance-co-ltd-vs-riaz'
$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>Jawad Rahim, J.',
	(int) 1 => '<p>1. The owner - insured and insurer of Matador Van bearing registration No. KA-04 2473 are in appeal against the judgment and award in MVC 19/2002 dated 17-02-2003 awarding to the first respondent in M.F.A. No. 6622 of 2003 compensation in a sum of Rs. 4,15,150/- towards physical permanent disability suffered by him as a result of injuries in the road traffic accident.',
	(int) 2 => '<p>2. The claimant, who in First Respondent in MFA No. 6622/2003 is also in appeal in MFA No. 6631/2004. As common questions of fact and law arise, the appeals are clubbed and heard together at the stage of admission itself as requested by both sides.',
	(int) 3 => '<p>3. As MFA 6622/2003 is a joint appeal by the insured and the insurer, though the insurer was not impleaded or granted permission to contest the claim on all grounds postulated under Clause (a) and (b) of Section 170 of the Motor Vehicle Act, (In short 'the Act'), a question regarding its maintainability is a moot question that has arisen for consideration. We have, therefore, heard this matter at the stage of admission itself.',
	(int) 4 => '<p>4. The relevant facts are:',
	(int) 5 => '<p>Riyaz-First Respondent in MFA 6622/03 and appellant in MFA 6631/04, was employed under the insured, namely, P.C. Manjunath to drive matador van bearing Registration No. KA-04-2473 on a monthly salary of Rs. 1,500/- plus Rs. 50/- paid to him as Batta.',
	(int) 6 => '<p>5. On 27-07-2994, 2nd appellant - employer directed him to drive the vehicle from Bangalore to Devanahally. When he reached Yerthiganahally gate a TATA goods vehicle bearing Registration No. CAD 3590 proceeding in opposite direction at high speed and in a rash and negligent manner dashed against his matador van, resulting in collision of vehicles. Due to the impact he has suffered injuries to both legs and become unconscious. At that stage he was taken to Sanjay Gandhi Hospital, where he was admitted. He continued to be unconscious and after few months he regained consciousness. During this period his right leg was amputated, as it was beyond any treatment and kneecap of left leg was also removed. In the result, he lost his right leg and consequently lost his avocation as driver.',
	(int) 7 => '<p>6. On these grounds he sought grant of Rs. 5,00,000/- as compensation, which includes pecuniary loss sustained by him for treatment towards, nourishment and attendant charges.',
	(int) 8 => '<p>7. In the claim petition the owner-insured of the vehicle - matador van bearing Registration No. KA-04-2473, who is also employer of the claimant, was arrayed as respondent No. 2, but he did not resist the claim petition. The insurer of the said vehicle (Appellant No. 1 in MFA 6622/2003) was arrayed as First Respondent and it has resisted the claim petition. In its statement of objections insurer has substantially accepted the correctness of the statement made by the claimant regarding negligence on the part of the driver of the TATA Goods Vehicle bearing No. CAS 3590, resulting in accident in question.',
	(int) 9 => '<p>8. Perusal of the statement of objections filed by the insurer clearly indicates that the insurer also pleaded that the claimant was driving the insured vehicle slowly with all caution and was not responsible for occurrence of the accident. It has attributed negligence and actionable wrong to the driver of the TATA Goods Vehicle bearing No. CAS 3590, thereby falling in line with the claimant's contention that he was neither negligent nor responsible for such mishap. The only defence taken by the insurance company is that the claimant was not entitled to the amount claimed in the claim petition, which according to them was exaggerated. The relevant categorical statement made by the insurer in their statement of objections needs to be referred to, which is as follows:',
	(int) 10 => '<p>PARA-7 - It is submitted that the driver who was driving the vehicle bearing registration No. KA-04 2473 was driving the same very slowly, at the time a Tata Medium Goods Vehicle bearing registration No. CAS 3590 came from opposite direction in a very high speed in a rash and negligent manner hit the matador van. This respondent hereby denied that due to impact of the accident the petitioner has sustained several injuries and fractures all over the body. It is further denied that the petitioner has sustained with fracture of both the les, and the right leg was imputed and he was suffered from number of injuries and he has spent Rs. 5,000/- towards transportation and Rs. 5,000/- towards nourishment food and treatment. The petitioner is put to strict proof of the same.',
	(int) 11 => '<p>It is material to note that the owner-insured of the vehicle did not dispute claimant's contention that he was employed under him and was at the relevant time driving the vehicle at his instructions during the course of claimant's employment.',
	(int) 12 => '<p>9. The owner and the insurer of the TATA Goods Vehicle bearing No. CAS 3590, have disputed the correctness of the averments in the claim petition and attributed the act of negligence to the claimant. Of course disputing the entitlement of the claimant to receive compensation.',
	(int) 13 => '<p>10. Based on the pleadings the Tribunal formulated the issues and answered them in the following manner:',
	(int) 14 => '<p>ISSUES:',
	(int) 15 => '<p>1. Whether the petitioner proves that the accident was due to rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which petitioner sustained injuries in the accident?',
	(int) 16 => '<p>2. Whether the petitioner is entitled to compensation as claimed? If not, to what amount of compensation is he entitled and from whom?',
	(int) 17 => '<p>3. What order?.',
	(int) 18 => '<p>IT RECORDED ITS FINDING THUS:',
	(int) 19 => '<p>1. The petitioner has failed to prove that the accident was due to the rash and negligent driving of the vehicle bearing No. CAS 3590 by its driver and as a result of which the petitioner has sustained injuries in the accident. But the petitioner has proved that the accident was due to rash and negligent driving of vehicle bearing Registration No. KA-04 2473 by its driver and thereby the petitioner has sustained injuries in the accident.',
	(int) 20 => '<p>2. The petitioner is not entitled to compensation as claimed, but he is entitled to compensation of Rs. 4,15,150/- and first respondent is liable to pay the compensation.',
	(int) 21 => '<p>3. As per final order.',
	(int) 22 => '<p>11. To record such a finding the Tribunal has taken into consideration the evidence of the claimant - PW1, who testified that while he was driving the vehicle from Bangalore to Devanahalli and as he reached near Yethiganahalli Gate, the goods vehicle bearing Registration No. CAs 3590 proceedings in opposite direction was driven rashly by its driver and hit against his vehicle generating severe impact which resulted in sever injuries to his person, particularly, to his lower limbs. He also deposed that vehicle had faulty brake system and thus he was driving the vehicle very slowly and despite such caution on his part, the offending vehicle was not controlled by its driver and by his negligence he hit against his vehicle.',
	(int) 23 => '<p>12. The Learned Member of the Tribunal ignored the evidence of the claimant that he was driving very slowly and took note of the fact that the vehicle had faulty brake system. Considering that aspect, the Tribunal held that the claimant had failed to prove the negligence on the part of the driver of the goods vehicle bearing registration No. CAS 3590 and consequently, issue No. 1 framed to determine the act of negligence, has been answered in the negative. Thus, the Learned Member of the Tribunal has absolved the driver of the vehicle bearing registration No. CAS 3590 of the fact of negligence, which finding has been assailed by the owner and insurer of the vehicle, who are appellants in MFA 6622/2003. They have also questioned the award passed contending that the Tribunal having held claimant negligent, should have dismissed the claim petition.',
	(int) 24 => '<p>13. However, that finding has been assailed by the claimant in his appeal - MFA 6631/2003 and therefore, we shall consider whether the Tribunal has appreciated the evidence in correct perspective.',
	(int) 25 => '<p>14. It is material to note that in the appeal the appellants have urged only the following grounds to assail the award:',
	(int) 26 => '<p>a) The claimant was driving vehicle bearing registration No. KA-04 2473 and on the Tribunal had held the claimant responsible for cause of accident, the Tribunal ought to have dismissed the claim petition.',
	(int) 27 => '<p>b) The Tribunal had failed to note that the accident was result of negligent driving of matador van bearing registration No. CAS 3590 and thus owner and insured of that vehicle ought to have been held responsible and not the appellants.',
	(int) 28 => '<p>c) When the claimant had failed to prove that the accident was result of negligence in the driving of vehicle bearing registration No. CAS 3590, he would not entitled to any compensation.',
	(int) 29 => '<p>Thus, it is seen the appellants have sought to avoid its liability only on the basis of the finding of the Tribunal that the vehicle had faulty brakes and not on the basis that the claimant was negligent or on the basis of defence which it had taken.',
	(int) 30 => '<p>15. Sri Narayana Rao, the Learned Counsel appearing for the claimant relied upon the decision of this Court in the case of D. Jayamma and Anr. v. S. Govindaswamy and Ors. 1982 A.C.J. 467, wherein it is held that the legal representatives of the deceased, who was found to be guilty of negligence, were not entitled to claim compensation. The remedy to them lies under the Workmen's Compensation Act. He also relied on five Judge bench decision of this Court in the case of Smt. Bhimavva and Ors. v. Shankar @ Adya and Ors. : AIR2004Kant58 , to contend that the remedy of the claimant was only to seek redressal under the provisions of workmen's Compensation Act and not under the provisions of Section 166 of M.V. Act.',
	(int) 31 => '<p>16. Per contra, Learned Counsel Sri V.S. Prasad, appearing for the claimant (Appellant in MFA No. 6631/2004) while opposing such contentions of the insurer has also assailed the finding recorded by the Tribunal that the claimant had failed to prove the negligence on the part of the driver of the other vehicle, but justified the directions in the award that the owner and insurer of the vehicle driven by the claimant should discharge the award amount. Most of his arguments are directed against the award to show its inadequacy and to seek enhancement. Reliance has been palced by him to several decisions of this Court, Madras High Court and Apex Court to justify the enhancement sought for. We shall refer to grounds urged by him after considering the question regarding maintainability of the joint appeal by the insured and the insurer.',
	(int) 32 => '<p>17. We have given serious concern to the case laws relied upon by both sides and shall now advert to the following issues that needs consideration;',
	(int) 33 => '<p>QUESTIONS FRAMED:',
	(int) 34 => '<p>1. Whether joint appeal by the insurer and the insured against the award is maintainable?',
	(int) 35 => '<p>2. Whether in a case of this nature where the Tribunal has held that the accident was result of mechanical defect of the vehicle - the driver - injured be deprived of the compensation that he would be otherwise entitled to?',
	(int) 36 => '<p>3. Whether claimant could maintain claim under Section 166 of the M.V. Act?',
	(int) 37 => '<p>4. Whether determination of compensation under various heads is adequate?',
	(int) 38 => '<p>18. Re. first question: It is necessary to notice that the Supreme Court in the case of National Insurance Corporation Co Ltd., Chandigarh v. Nicolletta Rohtagi and Ors. : [2002]SUPP2SCR456 , has held that in the case where the insurer has not been impleaded as permissible under the provisions of Section 170 of M.V. Act, it cannot maintain an appeal against the judgment and award questioning finding regarding negligence or the quantum except for the limited grounds which are available to it under the provisions of Section 149(2) of the Act. The Apex Court has elaborately discussed the right of the insurer to file an appeal and has emphatically held that it is confined to only such ground as are permitted under Section 149 of the Act. Also the Apex Court has spelled out certain circumstances on the basis of which insurer can agitate in an appeal the award passed on the question of finding regarding negligence and quantum. While holding that the insured - owner can challenge such an award it held categorically that the joint appeal preferred by the insured and insurer assailing the award on the question of finding regarding negligence and quantum, is not maintainable. This is found in the observation of the Apex Court in Para-13 and 14 of its judgment. However, relevant observation is that even after insurer has been made a party to the case or claim, the question arises what are the defences available to it under the statute. The language employed in enacting Sub-section (2) of Section 149 appears to be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in Sub-section (2) of Section 149 of 1988 Act, and no other grounds are available to it. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. If insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the Legislature and annihilate mandate of the provisions of Section 170, and 149 of the Act.',
	(int) 39 => '<p>19. The Apex Court has referred to its earlier decisions in the case of Narendrakumar v. Yarenissa 1998(9) SCC 2002, Chinnamma George and Ors. v. N.K. Raju and Anr. : [2000]2SCR1050 and held that even joint appeal by the insured and the insurer is not maintainable. Following is the relevant extract from the decision in the case of Nicolletta Rohtagi case reported in : [2002]SUPP2SCR456 :',
	(int) 40 => '<p>PARA-19 -In Shankarayya v. United India Insurance Co. Ltd. : AIR1998SC2968 , it was held that an insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 are found to be satisfied and for the purpose the insurance company has to obtain an order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless this procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defences. In absence of the existence of the conditions precedent mentioned in Section 170, the insurance company was not entitled to file an appeal on merits questioning the quantum of compensation.',
	(int) 41 => '<p>PARA-20 -In Narendra Kumar v. Yarenissa : (1998)9SCC202 , question arose whether there can be a joint appeal by an insurer and owner of the offending vehicle. It was held that even in the case of a joint appeal by the insurer and the owner of an offending vehicle, if an award has been made against the tortfeasors as well as the insurer, even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause title is suitably amended by deleting the name of the insurer. In the said case, if also held thus: (SCC p.206, para 5)',
	(int) 42 => '<p>The grounds on which the insurer can defend the action commenced against the tortfeasors are limited and unless one or more of those grounds is/are available the insurance company is not and cannot be treated as a party to the proceedings. That is the reason why the courts have consistently taken the view that the insurance company has no right to prefer an appeal under Section 110-D of the Act unless it has been impleaded and allowed to defend on one or more of the grounds set out in Sub-section (2) of Section 96 or in the situation envisaged by Sub-section (2-A) of Section 110-C of the Act.PARA-21 - In Chinnamma George v. N.K. Raju : [2000]2SCR1050 , it was held that if none of the conditions as contained in Sub-section (2) of Section 149 exists for the insurer to avoid the liability, the insurer is legally bound to satisfy the award and the insurer cannot be a person aggrieved by the award. In such a case, the insurer will be barred from filing an appeal against the award of the Tribunal. It was also held that the insurer cannot maintain a joint appeal along with the owner or driver if defence of any ground under Section 149(2) is not available to it.',
	(int) 43 => '<p>PARA-22 - In Rita Devi v. New India Assurance Co. Ltd. : (2000)ILLJ1656SC , it was held that the insurer having not obtained permission under Section 170 of the 1988 Act, is not entitled to prefer any appeal to the High Court against, the award given by the Tribunal on merits.',
	(int) 44 => '<p>Thus, it is seen the insured can Pursue appeal only after giving up the insurer as the appellant and not otherwise. In the instant case the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. We answer first point in the negative and record that the joint appeal as filed by the insured and the insurer is not maintainable',
	(int) 45 => '<p>20. Re. Second and Third Question: It is noticed that in the statement of objections filed by the insurer before the Tribunal categorical statement has been made that the claimant, who was driver of the vehicle in question, was driving slowly and it is the driver of CAS 3 590, who by his negligence caused the accident. A clear statement in the counter filed by the insurer precludes it from contending otherwise. Therefore, the insurer is estopped from contending that its driver claimant was negligent. In this appeal the ground urged by the insured and insurer is totally based on the finding of the Tribunal that accident was result of defective and faulty brake system.',
	(int) 46 => '<p>21. The Learned Counsel Sri Narayana Rao appearing for the appellants - insured and insurer endeavour to persuade us to accept that the claimant-driver of the matador van bearing Registration No. KA-04-2473 cannot claim any compensation for his own wrong, if the award is sustained it would be compensation for the negligence of the claimant himself and has placed reliance on D. Jayamma's case, referred to supra. The proposition is seemingly attractive but despite his persuasive eloquence we feel on closer examination such submissions deserve only rejection. Our reasons are as follows:',
	(int) 47 => '<p>Firstly, such a contention was not raised before the Tribunal in its statement of objections and thus we are not persuaded to allow the appellants to raise that plea at this stage;',
	(int) 48 => '<p>In D. Jayamma's case, referred to supra, this Court in Para-10 observed thus:',
	(int) 49 => '<p>To make a claim under the provisions of the Motor Vehicle Act, it is necessary to plead and prove that the accident was the result of rash and negligent driving of the vehicle in question by its driver resulting in the accident, the claim being for injury or death of a third party. Without proving such actionable negligence, compensation under the Motor Vehicles Act, is not maintainable. The point is settled by a decision of the Supreme Court of India in the case of Minu B. Metha and Anr. v. Balakrishna Ramachandra Nayan and Anr. 1977 ACJ 118 . Therefore, if the accident, as is in the present case, has occurred due to the rash and negligence driving of the lorry by the deceased driver himself, the petition for compensation cannot lie under Section 110-A of the Motor Vehicles Act, by his legal representatives. The reason is obvious. A person cannot claim advantage of his own wrong. If he proves, however, that the negligence was in the maintenance of the lorry by the owner and not in the driving of the vehicle no doubt an application can lie under Section 110-A of the Motor Vehicles Act. There is no such pleading in the petition and the respondent has specifically averred that there was no negligence in the maintenance of the lorry.',
	(int) 50 => '<p>Thus, while holding that if an accident has occurred due to rash and negligent driving of the lorry by the deceased driver himself the petition for compensation cannot lie under Section 110-A of the Act by his legal representative, it is held, if he proves, however, that negligence was in maintenance of lorry by the owner and not in the driving of the vehicle, no doubt application can lie under Section 110-A of the Act.',
	(int) 51 => '<p>Secondly, assuming that the appellants can raise this ground, we are not inclined to agree with such proposition. It is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. Statutory right is conferred upon him, accruing by virtue of his employment under insured to claim compensation under workmen's Compensation Act. The insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of Section 149 of the Act;',
	(int) 52 => '<p>Third, we may observe that the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under Workmen's Compensation Act, but also under benevolent provisions under Section 166 and 167 of the IMV Act. The right of driver to seek compensation is not restricted only to the Workmen's Compensation Act, it has been enlarged to enable such person to seek 'just compensation' (Section 166 and 168 of the Act), conferring upon him the right of election engrafted under Section 167 of the Act, to chose either of the two Forum, which reads thus:',
	(int) 53 => '<p>OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under '
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OPTION REGARDING CLAIMS FOR COMPENSATION IN CERTAIN CASES. -Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (8 of 1923) where the death of or bodily injury to any person gives rise to a claim for compensation under

Subject	Motor Vehicles
Court	Karnataka High Court
Decided On	Apr-05-2006
Case Number	M.F.A. Nos. 6622 of 2003 and 6631 of 2004
Judge	V. Gopala Gowda and ;Jawad Rahim, JJ.
Reported in	ILR2009KAR1062
Acts	Motor Vehicle Act, 1988 - Sections 96(2), 110A, 110C(2A), 110D, 147, 149, 149(1), 149(2), 157, 166, 167, 168 and 170; Workmen's Compensation Act, 1923
Appellant	New India Assurance Co Ltd. and anr.
Respondent	Riaz and ors.
Appellant Advocate	G. Narayana Rao, ;R. Jayaprakash and ;V.S. Prasad, Advs.
Respondent Advocate	V.S. Prasad and ;Jaikumar, Advs. for R1 and ;M.G. Ponacha and ;G. Narayana Rao, Advs. for R4 and R1

New India Assurance Co Ltd. and anr. Vs. Riaz and ors. - Court Judgment